Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Dick Smith Electronics Pty Limited v Westpac Banking Corporation
[2002] FCA 1040
PRACTICE AND PROCEDURE – discovery – legal professional privilege – whether legal professional privilege existed in relation to internal memorandum prepared for mixed purposes of human resources activities and potential litigation.
Esso Australia Resources Limited v Federal Commissioner of Taxation (1999) 201 CLR 49 applied Grant v Downs (1976) 135 CLR 674 cited Hartogen Energy Ltd v The Australian Gas Light Company (1992) 36 FCR 557 cited Trade Practices Commission v Sterling (1979) 36 FLR 244 applied Waugh v British Railways Board [1980] AC 521 cited Wheeler v Le Marchant (1881) 17 Ch D 675 cited DICK SMITH ELECTRONICS PTY LIMITED V WESTPAC BANKING CORPORATION N 0026 OF 2002 BEAUMONT J 23 AUGUST 2002 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 0026 OF 2002
BETWEEN: DICK SMITH ELECTRONICS PTY LIMITED
APPLICANT
AND: WESTPAC BANKING CORPORATION
RESPONDENT
JUDGE: BEAUMONT J
DATE OF ORDER: 23 AUGUST 2002
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The claim of privilege in respect of Portion 1 is disallowed. 2. The claim of privilege in respect of Portion 2 is allowed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 0026 OF 2002
BETWEEN: DICK SMITH ELECTRONICS PTY LIMITED
APPLICANT
AND: WESTPAC BANKING CORPORATION
RESPONDENT
JUDGE: BEAUMONT J
DATE: 23 AUGUST 2002
PLACE: SYDNEY
REASONS FOR RULING (ON PRIVILEGE CLAIM)
BEAUMONT J:
INTRODUCTION 1 By its list of documents filed on 8 July 2002, pursuant to an order for discovery, Westpac Banking Corporation ("Westpac"), the respondent in the principal proceedings, made a claim of legal professional privilege in respect of certain portions only of a confidential internal memorandum, dated 2 March 2001 ("the Memorandum"). 2 By its notice of motion filed on 17 July 2002, Dick Smith Electronics Pty Limited ("Dick Smith"), the applicant in the principal proceedings, now seeks an order, pursuant to O 15 r 11, for the production of the whole of the Memorandum, contending that the claim for privilege cannot be maintained in the present context. 3 For its part, Westpac accepts, in accordance with the settled course of authority, that it bears the onus of showing that the claim for privilege ought to be allowed.
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